Ellis v Repatriation Commission [2014] FCA 847

Ellis v Repatriation Commission [2014] FCA 847

The Tribunal asked itself the wrong question by incorrectly or incompletely identifying the first hypothesis advanced by Mrs Ellis, which included that Mr Ellis had a BMI over 25 for five years before the clinical onset of diabetes mellitus. That error infected its later comparison with the Diabetes Mellitus SoP. The Tribunal also erred by treating the clinical onset of diabetes as sometime in 1975 at a stage where no fact finding was permissible. The appeal was therefore allowed and the matter remitted to the Tribunal differently constituted.

Jurisdiction
Australia
Judgment Date
11 August 2014
Procedural Posture
Appeal From the Administrative Appeals Tribunal Concerning a Widow's Pension Claim Under the Veterans' Entitlements Act 1986 (cth) / Appeal Pursuant to S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From Ellis V Repatriation Commission [2013] AATA 433
Outcome
Appeal allowed with costs; AAT decision set aside and remitted to the AAT differently constituted to be determined according to law.
Legal Topics
['war Caused Death' "widow's Pension" "veterans' Entitlements Act 1986 (cth) S 120(3)" 'statements of Principles' 'administrative Appeals Tribunal Review' 'question of Law']
['administrative Law' "veterans' Entitlements"] ['war Caused Death' "widow's Pension" "veterans' Entitlements Act 1986 (cth) S 120(3)" 'statements of Principles' 'administrative Appeals Tribunal Review' 'question of Law']

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Procedural Posture

Appeal From the Administrative Appeals Tribunal Concerning a Widow's Pension Claim Under the Veterans' Entitlements Act 1986 (cth) / Appeal Pursuant to S 44 of the Administrative Appeals Tribunal Act 1975 (cth) From Ellis V Repatriation Commission [2013] AATA 433

Legal Issues

  1. 1 ["Whether the Administrative Appeals Tribunal misconceived or misunderstood its function when applying s 120(3) of the Veterans' Entitlements Act 1986 (Cth)." "Whether the Tribunal considered the hypothesis put forward by the applicant connecting Mr Ellis' death with his operational service." 'Whether there was material before the Tribunal raising or pointing to a hypothesis consistent with the Statement of Principles concerning Diabetes Mellitus, No 89 of 2011.' 'Whether it was open to the Tribunal to find that the material did not point to the veteran being overweight for at least five years before the clinical onset of diabetes mellitus.' 'Whether the Tribunal impermissibly engaged in fact finding at the first to third Deledio steps.']

Ratio Decidendi

The Tribunal asked itself the wrong question by incorrectly or incompletely identifying the first hypothesis advanced by Mrs Ellis, which included that Mr Ellis had a BMI over 25 for five years before the clinical onset of diabetes mellitus. That error infected its later comparison with the Diabetes Mellitus SoP. The Tribunal also erred by treating the clinical onset of diabetes as sometime in 1975 at a stage where no fact finding was permissible. The appeal was therefore allowed and the matter remitted to the Tribunal differently constituted.

Court Disposition

Appeal allowed with costs; AAT decision set aside and remitted to the AAT differently constituted to be determined according to law.

Orders

  • ['The decision of the Administrative Appeals Tribunal be set aside and the matter remitted to the Tribunal differently constituted to be determined according to law.' "The Respondent pay the Applicant's costs."]